J.D. v. State

• Decision Date: 16 October 1990
• Docket Number: No. 89-1644,89-1644
• Parties: 15 Fla. L. Weekly D2582 J.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 99

568 So.2d 99

15 Fla. L. Weekly D2582

J.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.

No. 89-1644.

District Court of Appeal of Florida Third District.

Oct. 16, 1990.

Bennett H. Brummer, Public Defender and Rosa C. Figarola, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen. and Jacqueline M. Valdespino, Asst. Atty. Gen., for appellee.

Before BARKDULL, COPE and GERSTEN, JJ.

GERSTEN, Judge.

Appellant, J.D., a juvenile, appeals from an adjudication of delinquency based on possession of cocaine. We reverse.

The facts in this case are straightforward. Appellant, with a closed fist, was walking down a street, away from two approaching police officers, in an area known for drug transactions. The officers approached appellant and without any comment or consent grabbed appellant's wrist. One officer forced appellant's hand open, revealing two envelopes containing rock cocaine.

Appellant was arrested by the two police officers, both of whom testified regarding the circumstances leading to the arrest. The first officer testified that he observed appellant in what the officer considered a high crime area, in the company of an adult male. The officer further testified that his basis for approaching appellant was:

The mere fact that the way he walked away from me and he had a closed hand throughout the whole time that he was walking.... And the mere fact that he was coming out of this area.

The first officer alleged that he grabbed appellant's wrist for his "safety and my partner's safety," since "in his experience" he has known people to carry weapons in their closed fist. Appellant was walking away from the officer and it appears he posed no danger to the officers. Nonetheless, the officer grabbed appellant's wrist and discovered the cocaine.

The second officer also testified as to "what brought his attention to, or brought him in contact with" appellant:

We were patrolling one of our narcotics areas that's known for a lot of sales and use. And the Defendant here, along with another white male, we observed them coming out of the--from the hotel, like, where they sell. The come down a back street. At that time, they were stopped.

Appellant moved to suppress the seized cocaine because of an illegal stop. The trial court denied appellant's motion and appellant pled nolo contendere reserving his right to appeal the trial court ruling on this suppression issue.

A police officer may temporarily detain a person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a crime. § 901.151, Fla.Stat. (1989). Such circumstances, however, do not include presence in a high crime area, even though attempting to conceal something, Jenkins v. State, 524 So.2d 1108 (Fla. 3d DCA 1988), running away from police in a high crime area, Cobb v. State, 511 So.2d 698 (Fla. 3d DCA 1987), walking in the company of a drug dealer, Mosley v. State, 519 So.2d 58 (Fla. 2d DCA 1988), or walking away from police briskly, Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980). Similarly, appellant's closed fist also does not give rise to circumstances sufficient to justify a stop. See Mosley, 519 So.2d at 58.

The State concedes that flight from an approaching officer, even in a high crime area, does not give rise to a founded suspicion of criminal activity justifying a stop and frisk. Nevertheless, the State, relying on Gipson v. State, 537 So.2d 1080 (Fla. 1st DCA 1989), contends that the police officer had a reasonable belief that appellant was armed, giving rise to the initial stop.

The State's reliance on Gipson is unfounded. In Gipson, the court reiterated the well established rule that flight from an...